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Su v. Kwiat Eye and Laser Surgery LLC

OSHA §11(c) Lawsuit Over Nonadherence to Covid-19 Protocols Proceeds

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MEMORANDUM DECISION AND ORDER I. INTRODUCTION Presently before the Court is Defendant Dr. David Kwiat’s (“Dr. Kwiat”) motion to dismiss the complaint, Dkt. No. 48 (“MTD”), Dr. Kwiat’s appeal of the Court Order lifting the discovery stay, Dkt. No. 52 (“Appeal”), Plaintiff’s motion to strike Dr. Kwiat’s reply in support of his MTD, Dkt. No. 59 (“MTS”), and Dr. Kwiat’s appeal of the Court Order setting a status conference, Dkt. No. 65. There are also several additional requests or motions by Dr. Kwiat and Plaintiff contained within these applications. For the reasons set forth below, the MTD is denied in its entirety, the appeals are denied as moot, and the MTS is denied as moot. II. BACKGROUND On March 17, 2022, the United States Secretary of Labor¹ (“Plaintiff”) commenced the instant action against Dr. Kwiat and his business, Defendant Kwiat Eye and Laser Surgery, PLLC (“KELS”), alleging a single cause of action for retaliation pursuant to Section 11(c) of the Occupational Safety and Health Act of 1970 (“Section 11(c)”), 29 U.S.C. §651 et seq. Dkt. No. 1 (the “Complaint”). Specifically, the Complaint alleges that an employee of KELS reported concerns about health and safety conditions in the workplace to her supervisor and the New York State Department of Health (“NYDOH”), specifically regarding KELS’s lack of adherence to federal and state COVID-19 health and safety protocols. Id. at

3-5. It is further alleged that the same morning KELS and Dr. Kwiat became aware of the employee’s report to NYDOH, the employee was terminated in retaliation, in violation of federal law. Id. at

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